Michael Anthony Sam v. State

• Court: Court of Appeals of Texas
• Decided: January 30, 2007
• Docket: 07-06-00383-CR
• Status: Published

Opinion

NO. 07-06-0382-CR

07-06-0383-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 30, 2007

______________________________ MICHAEL ANTHONY SAM, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE CRIMINAL JUDICIAL DISTRICT COURT OF JEFFERSON COUNTY;

NO. 93823, 93824; HONORABLE LARRY GIST, JUDGE _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ON ABATEMENT AND REMAND

Appellant Michael Anthony Sam has filed a notice of appeal from the trial court's judgment revoking his community supervision in two causes. First, in appellate cause number 07-06-0382-CR, he appeals the judgment adjudicating him guilty of delivery of a controlled substance and imposing a sentence that included confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of five years.

In cause number 07-06-0383-CR, appellant has filed his notice of appeal from the trial court's judgment revoking his community supervision, adjudicating him guilty of delivery of marijuana and imposing a sentence that included confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of 18 months.

The trial court certified appellant's right to appeal in both cases. On October 3, 2006, the appeals were transferred from the Ninth District Court of Appeals to this Court. The appellate court clerk received and filed the trial court clerk's record on September 13, 2006, and received and filed the reporter's record on October 13, 2006.

Appellant's brief in both cases was originally due on November 13, 2006. This Court's November 27, 2006 letter informed appellant's appointed attorney of the original due date and stated that if the brief or a response was not received by December 7, 2006, the appeals would be abated to the trial court. Tex. R. App. P. 38.8(b). Although appellant did not file his brief, counsel for appellant faxed a communication to this Court on December 12, 2006 which requested an extension of time to file his brief to January 4, 2007. By our letter dated January 5, 2007, counsel was advised that if the brief was not filed by January 19, 2007, the appeals would be abated to the trial court. As of this date, we have not received a brief in either appeal, or further communication from counsel.

Accordingly, the appeals are abated and the causes are remanded to the trial court. Tex. R. App. P. 38.8(b)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing, at which appellant's present counsel shall personally appear, to determine:

(1) whether appellant desires to prosecute these appeals;

• if appellant desires to prosecute these appeals, the reasons for appellant's counsel's failure to timely file a brief;

• if appellant desires to prosecute these appeals, whether appellant's present counsel should be replaced; and
• what orders, if any, should be entered to assure that the appeals will be diligently pursued if appellant desires to prosecute these appeals.

If the trial court determines that the present attorney for appellant should be replaced, the court shall cause the clerk of this Court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed attorney.

In support of its determination, the trial court shall prepare and file written findings of fact and conclusions of law and cause them to be included in a supplemental clerk's record. The hearing proceedings shall be transcribed and included in a supplemental reporter's record. Those supplemental records shall be submitted to the clerk of this Court no later than March 1, 2007.

Per Curiam

Do not publish.

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NO. 07-10-0043-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

FEBRUARY 17, 2010

______________________________

UNITED SUPERMARKETS, L.L.C., APPELLANT

V.

SANDRA RAMIREZ, APPELLEE

_________________________________

FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2008-545,560; HONORABLE WILLIAM C. SOWDER, JUDGE

_______________________________

Before QUINN, C.J., and CAMBPELL and PIRTLE, JJ.

ORDER FOR MODIFICATION PURSUANT TO RULE TEX. R. APP. P. 27.2

            On December 29, 2009, Appellee, Sandra Ramirez, a United Supermarkets, L.L.C. employee, was awarded damages from an arbitrator. United Supermarkets filed a notice of appeal challenging the arbitrator's award on January 28, 2010.  Upon review of the notice of appeal, this Court questioned whether the document was an appealable order.  See Tex. Civ. Prac. & Rem. Code Ann. § 171.098(a) (Vernon 2005).  By letter dated February 5, 2010, United Supermarkets was directed to show cause why the appeal should not be dismissed for want of jurisdiction. 

            United Supermarkets filed a response explaining it had filed an Application to Vacate, Modify, or Correct the Arbitrator's Award which has yet to be decided and had filed the notice of appeal out of an abundance of caution.  United Supermarkets requests this appeal not be dismissed pending a final ruling from the trial court which will result in a final, appealable order.

            This Court withholds dismissal of the appeal and sua sponte abates the appeal for sixty days from the date of this order to allow United Supermarkets to take action to modify the arbitrator's award so as to be made final and appealable.  See Tex. R. App. P. 27.2.   See also Iacono v. Lyons, 6 S.W.3d 715 (Tex.App.--Houston [1st Dist.] 1999, no pet.).  All appellate timetables will begin to run from the date a final, appealable order is signed.

            It is so ordered.

                                                                                    Per Curiam